CASE OF TANIS AND OTHERS v. TURKEY

7/30/2019 CASE OF TANIS AND OTHERS v. TURKEY

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CONSEILDE LEUROPE

COUNCILOF EUROPE

COUR EUROPENNE DES DROITS DE LHOMME

EUROPEAN COURT OF HUMAN RIGHTS

FOURTH SECTION

CASE OF TANI AND OTHERS v. TURKEY

(Application no. 65899/01)

JUDGMENT

STRASBOURG

2 August 2005

FINAL

30/11/2005


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TANI AND OTHERS v. TURKEY JUDGMENT 1

In the case of Tan and Others v. Turkey,

The European Court of Human Rights (Fourth Section), sitting as a

Chamber composed of:Sir Nicolas BRATZA,President,Mr J. CASADEVALL,Mr R. TRMEN,Mr M. PELLONP,Mr R. MARUSTE,Mr S. PAVLOVSCHI,Mr J. BORREGO BORREGO,judges,

and Mr M. O'BOYLE, Section Registrar,Having deliberated in private on 5 July 2005,Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 65899/01) against theRepublic of Turkey lodged with the Court under Article 34 of theConvention for the Protection of Human Rights and Fundamental Freedoms(the Convention) by four Turkish nationals, Mr Yakup Tan, Mr MehmetAta Deniz, Mr uayip Tan and Mrs Selma Gngen (Tan) (theapplicants), on 9 February 2001.

2. The applicants, who had been granted legal aid, were represented byMr T. Eli, Mr . Tan, Mr C. Aydn and Mr R. Yalnda, of theDiyarbakr Bar. The Turkish Government (the Government) wererepresented by their co-Agent, Mr M. zmen.

3. The application concerns the disappearance of two leaders of theSilopi branch of the People's Democracy Party (Halkn Demokrasi Partisi(HADEP)). The applicants alleged that the two men had been the victims ofan extrajudicial execution in custody, despite the authorities' assertion thatthey had not been detained. The applicants relied on Articles 2, 3, 5 and 13of the Convention

4. The application was allocated to the First Section of the Court(Rule 52 1 of the Rules of Court). Within that Section, the Chamber thatwould consider the case (Article 27 1 of the Convention) was constitutedas provided in Rule 26 1.

5. By a decision of 11 September 2001, the Chamber declared theapplication admissible.

6. On 1 November 2001 the Court changed the composition of itsSections (Rule 25 1). This case was assigned to the newly composedFourth Section (Rule 52 1).


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2 TANI AND OTHERS v. TURKEY JUDGMENT

7. A delegation from the Court, composed of Judges Sir Nicolas Bratza,M. Pellonp and R. Maruste, heard evidence from witnesses between

28 and 30 April 2003 in Ankara.8. On 6 June 2003, to assist it in its examination of the merits of the

case, the Court asked the Government to produce a fresh copy of theinvestigation file to include information that had been deleted from the fileinitially sent following a request by the public prosecutor's office for it toremain confidential. In a letter of 25 July 2003, the Government informedthe Court that, as the information was still confidential, they were unable to

produce the internal file with the missing information.9. In a letter of 4 December 2003, the Court asked the Government for

additional information regarding progress in the investigation launched bythe domestic authorities, including a chronology of the various stages in the

investigation, the date the file would cease to be confidential and the datethe investigation was scheduled to end. The letter also stated that the Courtregret[ted] that it ha[d] not received the documents from the investigationfile showing the deleted information and that it [had] not [been] permitted totake evidence from Mr Levent Ersz, the commanding officer of the rnakgendarmerie regiment at the material time, or from the person who [had]made the telephone call to Serdar Tan.

10. On 3 and 30 July 2004 respectively the applicants' representativesand the Government produced to the Court copies of decisions in which the

prosecuting authorities had ruled that neither the commanding officer of thernak gendarmerie nor the officers concerned had a case to answer.

11. On 1 November 2004 the Court changed the composition of itsSections (Rule 25 1). This case was assigned to the newly composedFourth Section (Rule 52 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

12. The applicants were born in 1978, 1963, 1955 and 1975 respectivelyand live in rnak. They are close relatives of Serdar Tan and EbubekirDeniz, respectively the President and Secretary of the Silopi branch of thePeople's Democracy Party (Halkn Demokrasi Partisi (HADEP)).


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A. The applicants' version of the events

13. The applicants alleged that Serdar Tan and Ebubekir Denizreceived death threats from the Silopi gendarmerie command and the rnakgendarmerie regimental headquarters on account of their political activities.

14. At about 1.30 p.m. on 25 January 2001, three people in a blue Fiatpurporting to be police officers attempted to force Serdar Tan to get intothe car. Having informed them that he would go to the central gendarmeriestation only if he received an official summons, he made his way toHADEP's offices. On receiving a call on his mobile phone from thegendarmerie commanding officer, he went to the station accompanied byEbubekir Deniz. Three witnesses, mer Sansur, sa Kanat and Hamit Belge,saw them enter the station.

15. An hour later, unable to reach the men on their mobile phones, theirfamilies and lawyers asked the Silopi public prosecutor and the Silopigendarmerie command for information. The commanding officer, SleymanCan, told them on the telephone that neither man had attended the station or

been taken into custody.16. On 1 February 2001, after the incident was reported in the press, the

rnak provincial governor issued a written statement indicating that the twomen had gone to the Silopi gendarmerie station on 25 January 2001, stayedfor half an hour, and then left the premises.

17. The applicants said that they had received no news of Serdar Tanor Ebubekir Deniz since 25 January 2001. Neither man had shown any signof life.

B. The Government's observations on the facts

18. The Government said that, on 17 and 18 January 2001 respectively,Serdar Tan and his father, uayip Tan, attended the Silopi gendarmeriestation to speak to the commanding officer. They signed the visitors'register, which indicated the times of their arrival and departure.

19. At 2 p.m. on 25 January 2001, Serdar Tan and Ebubekir Deniz

went to the station to see the commanding officer. As he was not there, theyspoke to another officer and left the building at 2.30 p.m. They signed thevisitors' register on entering and leaving the building.

20. After criminal complaints were lodged by the two men's families, theSilopi public prosecutor launched an investigation and took statements fromthe applicants. The relevant authorities were notified that they were missingand their photographs and descriptions were circulated to the public

prosecutor's offices and police headquarters in the province.21. On 26 February 2001, at the request of the prosecutor leading the

investigation, the district court made an order under Article 143 of the Code


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of Criminal Procedure restricting access to the preliminary investigationfile.

22. On 3 March 2001 the authorities seized a letter discovered whensearching a vehicle that had crossed the border from northern Iraq whichindicated that Serdar Tan and Ebubekir Deniz were in a PKK (Workers'Party of Kurdistan) camp in Doloki (Iraq). The driver and owner of thevehicle and Serdar Tan's father were taken into custody, but released aftermaking statements.

C. Oral evidence

23. Three delegates from the Court took the following depositions inAnkara between 28 and 30 April 2003. The depositions of Divan Arsu,Mehmet Ata Deniz and Zehra Deniz were obtained through an interpreter.

1. uayip Tan

24. uayip Tan said that he was an applicant and Serdar Tan's father.He was living in Cizre at the material time, and ran a petrol station inBaveren (Silopi). He last saw his son, who lived in Silopi, on 24 January2001.

25. Before commencing his military service, that is to say prior toNovember 2000, his son had worked as a driver transporting fuel from Iraq.Serdar Tan was the only child providing for the family, as the other

children had not completed their studies. The witness said that he had heardthat after returning from military service Serdar Tan and a group of friendshad taken steps to open a local branch of HADEP in Silopi.

26. In October 2000 the witness and his brother were arrested bygendarmes on their way to work. His brother was released, but the witnesswas taken to Cizre district gendarmerie station. On the same day thegendarmes searched his home in his presence and made him sign a record.He was then taken to rnak gendarmerie headquarters, where he was heldfor seven days. He was made to wear a blindfold during questioning, socould not identify his interrogator. His interrogator told him: Give up yourHADEP activities. If you don't, it will cost you your life. The witness was

tried with four co-defendants and spent approximately fifty-seven days inprison. The person who made the accusations against them subsequentlysent a letter to the authorities informing them that he had been acting underduress and did not even know the defendants.

27. The witness then gave details of a meeting he had had with thecommanding officer, Levent Ersz, at the rnak regimental headquarters.The commanding officer had threatened him, saying: Give up the idea ofopening a local branch of HADEP in Silopi. I don't want to hear what youhave to say, this is my area. If you don't give it up, I will not let you live.


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28. The witness said that he had also been summoned by Sleyman Can,the commanding officer of the Silopi district gendarmerie, in January 2001,

approximately two weeks before his son went missing. Sleyman Can hadsaid to him Tell Serdar to give up this business and had telephonedLevent Ersz, who asked to speak to the witness and said: Why didn'tSerdar come and see me? You tell him that if he doesn't come today, I'll killhim if he ever sets foot in the rnak area again. Tell him that. He knows my

position and rank.29. The witness and his son Mdr went back to see Sleyman Can,

who repeated his earlier warning: Tell him to give up that business. All hiscolleagues have resigned. He's the only one who's stayed on. If he doesn'tresign, he'll come to grief. Before leaving the premises, they askedSleyman Can to convince Serdar Tan himself or to put pressure on him.

30. On being asked by the witness why he had not gone to see the rnakcommanding officer, Serdar Tan replied that he had spoken to him on thetelephone and added that after the party's inauguration he had received a callfrom Sleyman Can and had told him: Commanding Officer, if I give it up,someone else will replace me. I was born in the area and know the situation

better and am not carrying out any illegal activity; I will not leave theparty.

31. The witness's nephew Eyp Tan told him that on 25 January 2001an attempt had been made to force Serdar Tan into a vehicle outside the

post office. He had told the occupants that he would only do as they said ifhe received a call from the official authorities.

32. The witness said that his son and Ebubekir Deniz went to thegendarmerie station after receiving a telephone call from that source. Thetwo men got on well and worked together for HADEP. Ebubekir Deniz hadalso received threats because of his political activities and, like SerdarTan, had been forced into hiding before the branch opened. Owing to theintimidation, he had been unable to continue working. The witness addedthat the entire family had suffered as a result of Serdar Tan's politicalactivities.

33. He said that on the night of 25 January he was informed by hisnephew dris Tan that Serdar Tan and Ebubekir Deniz had not returned

from the station. For four or five days the authorities denied that they hadbeen there. On the sixth day the commanding officer said that, as he hadbeen out on a tour of inspection, the two men had been seen by a non-commissioned officer, Selim Gl, and had left the premises half an hourlater. The witness lodged a complaint with the public prosecutor on 28 or29 January. Subsequently he and Mehmet Ata Deniz went to see thecommanding officer Sleyman Can, who repeated that they had been on the

premises for half an hour, but had then left. He told them: We handed themover to the JTEM [Jandarma stihbarat TerrleMcadele Gendarmerie


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Anti-Terrorist Intelligence Branch] ... the JTEM does not take orders fromthe regimental commanding officer.

34. The witness affirmed that he had been held in custody at the rnakSecurity Directorate because of a letter addressed to him that had allegedly

been seized in a vehicle that had entered Turkey from Iraq. The police toldhim that the letter said that his son was in the PKK camps. The witnessconsidered that incident to be part of a plot against them.

2. Eyp Tan

35. Eyp Tan said that he was born in 1976 and was living in Silopi atthe material time. He was a cousin of Serdar Tan and a formeradministrator of the local branch of HADEP.

36. He too stated that threats had been made against Serdar Tan by theregimental commanding officer of the gendarmerie because of his attemptsto open a local branch of HADEP in Silopi. Serdar Tan had been subjectedto intimidation and followed by plain-clothes police officers. He had beenforced to leave Silopi and had spent approximately one month inDiyarbakr. The witness said that he too had been followed on a number ofoccasions. All seven of the HADEP party administrators had receivedthreats and three had resigned as a result.

37. On the morning of 25 January 2001, the witness and Serdar Tanwent to the HADEP offices, where the other party members were also

present. Towards noon he went with Serdar Tan to the post office. A car

with three people inside pulled up in front of them. The driver and one ofthe passengers opened a rear door and asked them to get in. Serdar Tanrefused, saying: We don't know you and if there's anything to be discussed,then we'll talk in an official institution, at the Silopi gendarmerie station orSecurity Directorate if you like in an official place like that. Unable to

persuade the witness and Serdar Tan to accompany them, the three people,who said they were police officers, left the scene. The witness and SerdarTan then returned to HADEP's offices. The witness left for a short periodduring which it appears that Serdar Tan received a telephone call from thecommanding officer of the gendarmerie and went to the station withEbubekir Deniz. After waiting for approximately twenty minutes, the

witness made several unsuccessful attempts to reach Serdar Tan on hismobile phone. According to the witness, the driver of the minibus who tookthem to the station saw them enter the building.

38. The witness said that he made a statement before the Silopi publicprosecutor. He also answered questions by an investigating officer andprovided a description enabling an identikit picture to be prepared of thetwo people who attempted to force Serdar Tan and Ebubekir Deniz intothe car. He subsequently attended the public prosecutor's office three timesto examine photographs. At one of the sessions he indicated that herecognised the driver of the car in one of the photographs and found a strong


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likeness in another. In that connection, the witness confirmed the content ofthe identification record that was drawn up on 26 February 2001.

39. The threats prompted by their political activities in HADEPcontinued after January 2001 and on one occasion the police searched the

party's offices.40. The witness added that before starting his military service Serdar

Tan was in the business of transporting fuel from Iraq and did not engagein any political activity. He repeated that on 25 January Serdar Tan wentto the Silopi gendarmerie station with Ebubekir Deniz after receiving atelephone call from the commanding officer. The two men had beensubjected to intimidation by the authorities when transporting fuel in theirvehicles. They had threatened to withdraw Ebubekir Deniz's operator'slicence and certificate. All the intimidation was linked to their political

activities.41. The witness said that following Serdar Tan's disappearance he

became the acting President pending the next HADEP congress. In 2002 hewas taken into custody at Silopi gendarmerie station. Around 7 a.m. onemorning a military vehicle drew up outside his house. He was taken to theSilopi gendarmerie station. He was blindfolded and told: You must resignfrom HADEP! He refused and was tortured and threats were made to killhim like Serdar Tan and Ebubekir Deniz. He was brought before a judgeand accused of having PKK documents at his home. He lodged a criminalcomplaint against the officers who were on duty when he was in custody.

3. Yakup Tan

42. Yakup Tan said he was an applicant and one of Serdar Tan'sbrothers. He was born in 1978 and was studying in Isparta at the materialtime. He returned to Silopi on 27 January 2001 following his brother'sdisappearance.

43. He saw his brother when their father was taken into custody by thegendarmerie. His father telephoned him to say that he was with an officerand asked him to contact Serdar Tan to persuade him to resign fromHADEP.

44. Yakup Tan also confirmed that the family had been subjected to

intimidation by the authorities on account of his brother's political activities.Serdar Tan could not remain in Silopi. He feared that he would be arrestedand had been threatened by Levent Ersz and Sleyman Can, thecommanding officers of the gendarmeries of rnak and Silopi respectively.Ebubekir Deniz was in the same position. Serdar Tan had sent a complaintto the authorities about the threats that had been made against him and hadasked for protection. The witness said that he had seen the complaint inquestion.

45. The witness said that despite various attempts he was unable to gainany information from the authorities about his brother. He had even been


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taken to the police station twice, where he was instructed not to write anyfurther letters to the authorities. A person called Mahmut had threatened to

kill him like his brother.

4. Mehmet Ata Deniz

46. Mehmet Ata Deniz said that he was an applicant and EbubekirDeniz's brother. He was assisted by an interpreter when giving evidence. Hewas born in 1963 and lived in Silopi.

47. He confirmed that before they went missing his brother and SerdarTan had been forced to go to Diyarbakr by the threats and intimidation towhich they had been subjected on account of their activities as members ofHADEP. Their wives, who lived in Silopi, feared reprisals by the authorities

and moved frequently.48. The witness said that approximately twenty days before hisdisappearance his brother had been arrested at the Habur checkpoint at the

border with northern Iraq, and his operator's licence had been seized. Theintimidation against his brother had begun when he joined HADEP.

49. The witness described a meeting he had had with Captain SleymanCan. He and uayip Tan had gone to the gendarmerie station to makeenquiries about Serdar Tan and Ebubekir Deniz. He had said to thecaptain: You have handed them over to the JTEM, to which the captainhad replied that the JTEM was not under his orders or the orders of thernak regimental commanding officer.

50. The witness said that he had made two statements to the Silopipublic prosecutor without the assistance of an interpreter. His statementshad been recorded by the public prosecutor, who had noted that he wasilliterate and did not understand Turkish.

5. Zehra Deniz, Divan Arsu and Selma Gngen

51. The three witnesses were born in 1981, 1978 and 1975. Zehra Denizis the wife and Divan Arsu the partner of Ebubekir Deniz. Selma Gngen isSerdar Tan's wife.

52. They confirmed that the authorities had threatened and intimidatedboth men on account of their activities as members of HADEP. They saidthat they had been afraid to remain in Silopi and had been forced to leavetheir home for a time.

6. mer Sansur

53. mer Sansur was born in 1981 and was living in Silopi at thematerial time.

54. He said that he was present at HADEP's offices when Serdar Tanreceived a telephone call from the gendarmerie station. Although it was


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Serdar Tan who received the summons to go to the station, EbubekirDeniz insisted on accompanying him.

55. The witness said that he had driven the two men to the station anddropped them off approximately 20 metres from the main entrance.

7. Hamit Belge and sa Kanat

56. The two witnesses were born in 1963 and 1951 respectively andlived in Silopi at the material time.

57. They said that they saw Serdar Tan and Ebubekir Deniz as theywere about to enter the gendarmerie headquarters by the main entrance. Thetwo men waved at them.

8. Ebcet Sunmez

58. Ebcet Sunmez was born in 1978 and was living in Cizre at thematerial time. He was a lorry driver and travelled from time to time to Iraqwith Serdar Tan and Ebubekir Deniz. He knew Serdar Tan well, as theywere from the same village.

59. He said that Serdar Tan had told him in telephone conversationsthat he had been subjected to intimidation and threats because of his

political activities, and that he had had to leave Silopi for approximately onemonth and had attended to the administrative formalities required to open a

branch of HADEP in Silopi in Diyarbakr.60. The witness gave this account of a visit he and uayip Tan had

made to the commanding officer of the Silopi gendarmerie Sleyman Can:Approximately twenty days before Serdar Tan's disappearance, I drove uayip

Tan to the Silopi district command. He had been summoned by Sleyman Can, whomet us and told uayip Tan that he wanted to speak to Serdar Tan to get him togive up his activities as a member of HADEP. Sleyman Can said that Levent Ersz,the commanding officer of the rnak regiment, had asked to speak to uayip Tan.He reached Levent Ersz on the telephone in dil where he was on a tour ofinspection. After speaking for approximately three minutes outside his office,Sleyman Can passed the telephone to uayip Tan. As it was a cordless phone, Iwas able to hear the conversation. The commanding officer said to him: 'Tell Serdar tocome and see me tomorrow, otherwise he had better not ever set foot in rnak again,or I'll kill him.'

The witness added that after leaving the station uayip Tan telephonedSerdar Tan to ask him to go and see the commanding officer. After thatincident, he encountered Serdar Tan in HADEP's offices in Silopi and toldhim that he had seen Sleyman Can.

61. The witness said that uayip Tan had been arrested prior to25 January 2001, probably as a result of his son's political activities.


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9. Sezgin Tanrkulu

62. Sezgin Tanrkulu said that he was born in 1963 and was living inDiyarbakr at the material time. He was a lawyer and a representative of theHuman Rights Association in Diyarbakr.

63. He did not know Serdar Tan or Ebubekir Deniz personally.However, he had been informed of the threats that had been made againstthem on account of their activities as members of HADEP. He learnt of theirdisappearance on 26 January 2001.

64. The witness said that on 29 January 2001 he, the President of theHuman Rights Association in Diyarbakr, Osman Baydemir, and two other

people went to see the Silopi public prosecutor, Kubilay Tatan. Mr Tatan

told them that he had spoken on the telephone with the commanding officerof the Silopi gendarmerie, who had affirmed that Serdar Tan and EbubekirDeniz had not been taken into custody or been to the station. The delegationfrom the Human Rights Association asked the public prosecutor why he hadnot gone to the station himself. The public prosecutor replied that heconsidered the answer he had received from the commanding officer on thetelephone sufficient and urged them to pursue their enquiries in rnak.

65. The witness said that he and Osman Baydemir had failed to get anaudience with either the commanding officer of the Silopi gendarmerie orthe district governor. The delegation went the same day to see the rnak

public prosecutor. He had been informed of the incident and was waiting for

written information from the Silopi public prosecutor's office. He said thathe would then enquire of the commanding officer of the rnak gendarmerieregiment whether the two men had been taken into custody. He told thedelegation that he had no power to take any other action.

66. On 31 January 2001 the witness drafted a report with other lawyersentitled The Silopi Disappearance Report, which brought the matter to theattention of the public. As a result, the disappearance of Serdar Tan andEbubekir Deniz was widely reported in the media. Approximately four daysafter the media became involved, the rnak provisional governor issued astatement to say that the two men had attended the gendarmerie station buthad left a short time later.

67. The witness said that on 4 February 2001 he and Osman Baydemirmade a public statement asking the authorities to explain why they haddenied the truth and to reply to various questions. As a result of theirstatement, they were prosecuted and tried before being acquitted of thecharges.


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10. Osman Baydemir

68. Osman Baydemir was born in 1971. He lived in Diyarbakr and wasthe President of the Human Rights Association at the material time. He isnow the mayor of Diyarbakr.

69. On 26 January 2001 the association was informed by dris Tan thatSerdar Tan and Ebubekir Deniz were missing. It tried to contact theauthorities but was unable to obtain any information.

70. The witness said that he went to Silopi on 29 January with SezginTanrkulu and two other people. He described the meetings with the public

prosecutors and confirmed what Sezgin Tanrkulu had said in his statement.He said that he had formed the view that the Silopi public prosecutor

appeared to be bound by the gendarmerie's denials and had told them that hehad not questioned any of the gendarmes concerned or gone to the scene tomake enquiries.

11. Resul Sadak

71. Resul Sadak was born in 1959 and was living in rnak at thematerial time. In January 2001 he was the President of the local branch ofHADEP in rnak. He knew Serdar Tan and Ebubekir Deniz from theiractivities in the party.

72. He confirmed that members and leaders of HADEP were subjectedto threats and intimidation. He himself had been taken into custody after the

application was made to open a party office in Silopi.73. In 1999, when he and others were in the process of trying to open a

local branch of HADEP in rnak, they too had been subjected tointimidation and threats by the authorities. Three members of the party inSilopi had been forced to resign as a result of the intimidation. The partyhad only been able to assemble five members instead of seven. Serdar Tanhad informed him of the pressure being exerted on him and in January 2001had handed over a letter in his presence to the President of the Diyarbakroffice of HADEP giving details of the threats and intimidation to which heand members of the party in Silopi had been subjected by the commandingofficer of the rnak regiment.

74. The witness asserted that at the beginning of January 2001 he wasarrested by gendarmes on the road from rnak to Diyarbakr andsummoned to the rnak regimental headquarters. The commanding officerthreatened him and expressed his displeasure at the opening of local party

branches in Silopi and Cizre. He asked him not to open the offices, saying:If you do not give it up, I will strangle you at the Kasrik Pass. Go andcomplain to whoever you want. You'll be in big trouble.

75. The witness said that Serdar Tan had received a number oftelephone calls in his presence from the commanding officers of the Silopi


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and rnak gendarmeries, and had informed him of the threats and pressureto which he had been subjected in an effort to persuade him to resign.

76. He said that he had informed the rnak public prosecutor of thethreats and intimidation to which they had been subjected as a result of their

political activities in HADEP and lodged a complaint.

12. Ali rkt

77. Ali rkt was born in 1959 and was the President of the Diyarbakroffice of HADEP at the material time.

78. He said that he had known Serdar Tan and Ebubekir Deniz sincethe end of 2000 and that they often came to Diyarbakr. He personallyoversaw their attempts to secure permission from the authorities to open a

local party branch in Silopi and witnessed the enormous difficulties theyencountered.79. Serdar Tan informed him of all the threats and intimidation to

which he and his entourage had been subjected. The witness overheard atelephone conversation in which Serdar Tan's father uayip Tan, whowas in custody at the time, called his son to ask him to see the commandingofficer of the rnak gendarmerie regiment immediately.

80. The witness said that Serdar Tan had been anxious and concernedabout the threats and arranged for his lawyer to draft five or six copies of a

petition to the public prosecutor and other authorities, informing them of theintimidation and pressure to which he and his entourage were being

subjected by the commanding officer of the rnak gendarmerie regiment.On 8 January 2001 Serdar Tan gave him the petitions. However, fearingreprisals, he kept them until 25 January 2001, when he handed them over tothe lawyers dealing with the case.

13. Mahmut Damar

81. Mahmut Damar was born in 1971. He was a sergeant at Silopigendarmerie district command and a traffic team commander at the materialtime.

82. He said that approximately eighty people worked at the station. Hedescribed the premises and said that in addition to the main entrance therewas a separate entrance for officers on the left-hand side of the building.

83. From 25 January until 9 a.m. on 26 January 2001 he was the dutyofficer and assisted non-commissioned officer Faruk Atalay. His dutieswere to monitor and record incidents and to supervise the activities of thesoldiers. Sergeant Veysel Ate was responsible for recording the names ofvisitors at the main entrance.

84. Mr Damar said that visitors were required to leave proof of identityand to sign the register. They were given a badge to enter the building.


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85. He said that no incidents had been recorded on 25 January 2001. Hedid not know Serdar Tan or Ebubekir Deniz and learnt of their

disappearance from the press and from discussions within the gendarmerie.

14. Cemal Gldler

86. Cemal Gldler was born in 1968 and was a non-commissionedofficer at Silopi district gendarmerie command at the material time. He hadadministrative duties relating to personnel.

87. He said that he did not know Serdar Tan or Ebubekir Deniz. Hehad heard of them and was informed of the incident after receiving asummons from the Silopi public prosecutor.

88. The witness said that in January they carried out a tour of inspection.

He could not remember whether the commanding officer of the rnakregiment had taken part. He confirmed that people entering or leaving thestation were required to sign a register.

15. Arif Aydoan

89. Arif Aydoan was born in 1979. He was performing his militaryservice at Silopi district gendarmerie command at the material time. He wason guard duty inside the building.

90. He did not know Serdar Tan or Ebubekir Deniz. He had heard ofthem through the public prosecutor.

91. The witness said that he could not recall the following statement he

made on 29 January 2001:The witness was shown photographs of Serdar Tan and Ebubekir Deniz. He said,

'The persons you have shown me did not enter the station while I was on duty ... on 25January 2001. As a great many civilians enter or leave the station, it is not easy tokeep track of them'.

16. Mehmet Tadan

92. Mehmet Tadan was born in 1979. He was performing his militaryservice at Silopi district gendarmerie command at the material time. He wason guard duty at the main entrance to the station.

93. He said that the visitors' registers were kept by Veysel Ate.94. He did not know Serdar Tan or Ebubekir Deniz. He had made astatement to the public prosecutor, who showed him photographs of the menand asked him if he knew them and whether he had seen them previously atthe station. That is how he learnt that they were missing.

17. Selim Gl

95. Selim Gl was born in 1968. He was a non-commissioned officerengaged in operations intelligence at Silopi district gendarmerie commandat the material time.


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96. He said that his job was to gather intelligence for use in maintainingpublic order and preventing crime. He was the leader of a two-man team.

He and his colleague reported to the commanding officer, Sleyman Can.The usual source of their information was individuals.

97. The witness knew Serdar Tan and Ebubekir Deniz. Serdar Tancontacted him by telephone at the end of 2000 to ask him for help as hisfather had been taken into custody for providing assistance and support to aterrorist organisation. Serdar Tan offered to provide information inexchange. The witness first met Serdar Tan in January 2001 in thecommanding officer's office. Their discussion lasted several minutes, butthe witness could not remember what it was about. They did not speak aboutSerdar Tan's HADEP activities and he was not subjected to pressure orintimidation.

98. The witness said that Serdar Tan provided him with information.He got in touch when he had information to pass on and in some ways actedas an agent for the witness and Captain Sleyman Can. The witness said thatthe first time he saw Ebubekir Deniz was on 25 January 2001.

99. On that date he saw both Serdar Tan and Ebubekir Deniz in thewaiting-room on the second floor of the gendarmerie station. They hadcome to see Sleyman Can about Ebubekir Deniz being disqualified fromdriving. The witness did not summon them to the building. As thecommanding officer was not there, they left the waiting-room, EbubekirDeniz first. The witness spoke with Serdar Tan for approximately thirtyseconds and he handed him documents wrapped in a newspaper he hadtaken out of the inside pocket of his jacket. One of the documents concernedHADEP, the other, contraband. The witness parted company with the twomen in the building and saw them leave by the main entrance. However, helost sight of them once they were in the street.

100. The witness did not recall when or how he was informed of theirdisappearance. He was questioned by the public prosecutor about it. Hecould not really remember whether he had handed the documents over to the

public prosecutor.101. He said that he gathered information about HADEP and other

political parties as part of his job and that gendarmerie officers working in

intelligence used unmarked vehicles when necessary. Takn Akgn workedfor the intelligence service at the regimental headquarters of the rnakgendarmerie. The witness did not know whether Takn Akgn and othergendarmes came to Silopi in civilian dress on 25 January 2001. Hecontacted him after the men's disappearance in order to work with him onthe investigation.

18. Veysel Ate

102. Veysel Ate was born in 1975. He was performing his militaryservice and had the rank of sergeant at Silopi district gendarmerie command


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at the material time. He was responsible for keeping the visitors' registersand carrying out the checks necessary for that purpose.

103. He said that once the checks had been carried out visitors wereallowed to go to the relevant office unaccompanied.

104. He knew Serdar Tan, who had already been to the gendarmeriestation in the past. The witness was on duty on 25 January 2001. SerdarTan arrived with Ebubekir Deniz. They appeared relatively calm and hespoke with them briefly. They told him that they had come to see thecommanding officer Sleyman Can. He informed them that he had goneout. Serdar Tan asked when he would be back. The witness replied that thecommanding officer did not give them any information about his schedule.Serdar Tan decided to wait for him in the waiting-room. He entered theirnames in the register and the two men signed the book using his pen. The

witness gave the following account of what ensued: After a few minutesSerdar Tan and Ebubekir Deniz returned to reception. I gave Serdar Tanhis mobile phone, they signed the register and left the premises. They didnot say whether they had seen anyone else and did not ask to see SelimGl.

105. As regards the visitors' register, the witness explained that when histurn of duty came to an end he would show the register to the officerrelieving him, who would check it and sign at the foot of the last page. Thewitness was unable to explain why there was no signature in the register for25 January 2001, whereas the corresponding page for 5 January 2001 didhave one.

The visitors' register showed that Serdar Tan had been to the station on18 January 2001.

106. The witness said that he clearly recalled that he had not seen anyvehicle pass through the entrance to the building on that date, other thanmilitary vehicles.

19. Ycel Erteki

107. Ycel Erteki was born in 1979. He was performing his militaryservice as a sentry at Silopi district gendarmerie command.

108. He said that he had not been informed of the disappearance of

Serdar Tan and Ebubekir Deniz. From his post, he could not see peopleentering or leaving the building. He could not recall being summoned by the

public prosecutor. However, he acknowledged that the signature on astatement taken by the public prosecutor was his.

20. Mehmet Bozca

109. Mehmet Bozca was born in 1966. He was a non-commissionedofficer serving in the operations unit of the rnak gendarmerie at thematerial time.


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110. He said that he had heard of Serdar Tan and Ebubekir Denizfollowing anonymous information received at the gendarmerie station in

March. While he could not remember the precise content of the information,the gist was that two people, who may have been Serdar Tan and EbubekirDeniz, had been taken by lorry to PKK camps in northern Iraq. Thegendarmerie passed the information on to the anti-terrorist branch of theSecurity Directorate and drew up a report. He played no further part in thecase.

21. Adnan Yenici, Murat zba, Hseyin Vedat Ylmaz, RamazanArlc and Ramazan Grlek

111. The witnesses were born in 1972, 1970, 1949, 1970 and 1972

respectively. They were police officers at the Habur Security Directorateand responsible for immigration control at the border with northern Iraq.112. They were informed that Serdar Tan and Ebubekir Deniz were

missing and were asked whether the two men had left or entered Turkeythrough the Habur checkpoint.

113. Acting on information from an anonymous informant, the witnessesstopped a lorry that had entered Turkey from Iraq and, during a search thattook approximately five hours, seized a letter and a small bottle filled withgreen powder. They were somewhat surprised as the information related to a

possible haul of leaflets issued by an illegal organisation. The driver waspresent during the search and denied any implication in the incident. They

informed the Silopi public prosecutor, who came out to the checkpoint. Theletter was intended for uayip Tan and said that Serdar Tan andEbubekir Deniz were in PKK camps in northern Iraq.

22. Sleyman Can

114. Sleyman Can was born in 1968 and was the commanding officerof the Silopi district gendarmerie at the material time.

115. He said that his superior was Colonel Levent Ersz, thecommanding officer of the rnak gendarmerie regiment. He wouldconverse with him several times a day.

116. He described the location of his office. Visitors waited in thewaiting-room opposite his office and he saw them when he had time.

117. He had not known Serdar Tan and Ebubekir Deniz beforeNovember 2000. He knew the former through his political activities as amember of HADEP. Serdar Tan was in contact with non-commissionedofficer Selim Gl and provided important information on the trafficking ofarms, fuel, drugs and illegal products.

The witness met uayip Tan for the first time in January. As thewitness had only just been appointed to the post, uayip Tan paid him acourtesy visit. He was accompanied by another person. uayip Tan


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mentioned that his son, Serdar, had just become President of the localbranch of HADEP in Silopi and would shortly be paying him a visit. The

witness asked uayip Tan to congratulate his son on his behalf.118. The witness said that in principle the establishment of a local party

office or a change in its membership would be of no interest to him.However, certain information and material in his possession had raisedconcerns about possible links between HADEP and the terroristorganisation KADEK (Kurdistan Freedom and Democracy Congress). Hedid not at any stage ask Serdar Tan and Ebubekir Deniz to give up theiractivities as members of HADEP.

119. He met uayip Tan again on 17 January 2000. He came to payhim a visit with his brother Mustafa Tan and two other people. This toowas a courtesy visit. On 18 January Serdar Tan himself came to visit him.

The witness had already spoken with him on the telephone but this was thefirst time he had seen him. Serdar informed him of his new position at thelocal branch of HADEP and confirmed that he continued to see non-commissioned officer Selim Gl. Serdar told the witness: Do not have anysuspicions about me, I wish to collaborate closely with the State, with all theagents of the State, the gendarmerie, the police and the district governor.He added that party leaders and other people had been putting pressure onhim. He had left Silopi for a time and had travelled to Van, Cizre andDiyarbakr to attend to personal matters and HADEP's affairs. The witnesssaid that their meeting took place in a very friendly atmosphere and he evencalled in Selim Gl. This was the first time Selim Gl had met Serdar Tan,as they had previously only spoken on the telephone. Serdar Tan hadcontacted Selim Gl for help when his father was in custody and offered to

provide information in exchange. The witness said that he had never metEbubekir Deniz; however, he had seen his name mentioned in an officialdocument as someone engaged in the transport of fuel from northern Iraq.

120. On the morning of 25 January 2001, the witness played host to ateam of eight or nine inspectors whom he accompanied on a tour ofinspection of the Ortaky and Bota gendarmerie posts (having left thestation at approximately 1.30 p.m.). He did not return to the station until5.30 p.m. or 6 p.m. and did not speak to Selim Gl that day. He saw him at

about 5 p.m. the following day. The witness said that he was replaced by theduty officer during his absence. None of his superiors or other officers fromthe rnak regimental headquarters visited the Silopi district command on25 January.

121. The witness said that on his return to the station in Silopi hereceived a telephone call from the Silopi public prosecutor, Kubilay Tatan,enquiring whether two people, who were members of HADEP, had beentaken into custody at Silopi district gendarmerie command. He said that theyhad not, but that he would make enquiries at other gendarmerie posts. The

public prosecutor rang back at about 9 p.m. and the witness informed him


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that his enquiries indicated that neither Serdar Tan nor Ebubekir Denizhad been taken into custody at any stage.

It was not until the following day that Sleyman Can learnt that SerdarTan and Ebubekir Deniz had come to see him. Selim Gl told him that hehad spoken with the two men, who said that Ebubekir Deniz was having

problems with his fuel transport business and needed his help. Beforeleaving the building Serdar Tan handed some documents on HADEP toSelim Gl. The witness refused to divulge the content of those documents.

122. It was the witness's understanding that the public prosecutor wasfully empowered to inspect the gendarmerie station (or to carry out aninvestigation). When visiting the station, the public prosecutor wouldinspect the registers and cells and thus perform routine checks.

123. With regard to HADEP's activities, the witness said that they were

relatively concerned about the party's links with KADEK. He added:KADEK is a terrorist organisation and has a great deal of influence over HADEP. I

informed Serdar Tan about this and asked him to keep me informed of anydevelopments. He assured me that Selim Gl and I would be informed without delayand that he would not be doing anything illegal. Prior to 26 January 2001 I had notspoken about Serdar Tan and Ebubekir Deniz to my superior, Levent Ersz. He hadnot asked me any questions about them. Following their disappearance, the public

prosecutor and the Ministry of the Interior investigators made enquiries. All theenquiries focused on the Silopi district gendarmerie command. We also madeenquiries: we questioned a number of people, some 400 soldiers, worked in closecooperation with the police and circulated posters bearing their photographs.However, when the letter was seized by police at the Habur border control, we

directed our investigations to northern Iraq.

I repeat that no pressure was exerted by command as a result of HADEP's activities.The resignations of some of HADEP's members was an internal party affair. Theallegations of threats and intimidation made by uayip Tan are without foundation.He came to pay me a courtesy visit and brought me a gift, which I declined. No oneordered Serdar Tan and Ebubekir Deniz to come to the station. I did not witness acall by Levent Ersz to uayip Tan on 5 January 2001; he did not say that unlessSerdar Tan came to see him he would never be able to set foot in rnak again andhe would kill him. I repeat that neither Serdar Tan nor Ebubekir Deniz were at anystage taken into custody. On 25 January they came to the station and then left.

124. The witness said that after returning from his tour of inspection at

about 5.30 p.m. on 25 January 2001 he was contacted by Mr dris Tan andthe public prosecutor Kubilay Tatan. He told them that neither of themissing men was in custody and gave the same reply to the district governorthe following day. In response to the district governor's comments, hechecked the register of visitors' arrivals and was informed of Serdar Tanand Ebubekir Deniz's visit. On 28 or 29 January 2001 the public prosecutorsummoned the gendarmes and requested the registers.

125. As to the allegation that the visitors' register was not signed by theduty officer on 25 January 2001, the witness explained that there was no


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rule on the subject and that it was left to the duty officer's discretion. Theimportant point was to note comings and goings.

126. The witness did not know the officers on the interrogation andintelligence team at the rnak regimental headquarters. He was unable tocomment on the document the Silopi public prosecutor had sent to thernak public prosecutor asking to be allowed to interview the officer whohad telephoned Serdar Tan (on his mobile phone) at 1.44 p.m. on 25January 2001 and indicating that the persons who had attempted to forcehim into their car at around 1.30 p.m. had been identified.

127. The witness said that he was questioned by the public prosecutor inFebruary 2002, by which time he had been transferred to the Baykandistrict. The public prosecutor had not summoned him earlier. He said thatcertain teams from the rnak regimental headquarters (dealing with

intelligence) wore plain clothes and used unmarked cars.128. The witness denied telling Mehmet Ata Deniz that the JTEM was

not under his orders or the orders of the commanding officer of the rnakgendarmerie regiment. He said that he knew nothing about the JTEM andhad never heard of the existence of such a unit within the gendarmerie.

23. Kubilay Tatan

129. Kubilay Tatan was born in 1969 and was one of the Silopi publicprosecutors at the material time. There were three public prosecutors inSilopi at the time, Hakan Baverdi, Gndoan ztrk and the witness.

130. He did not know Serdar Tan and Ebubekir Deniz and had nevermet them. He was informed of the incident at about 5 p.m. on 25 January2001 by Mr dris Tan. He contacted the commanding officer of the Silopigendarmerie on the telephone and asked his replacement to make enquiriesof all the gendarmerie posts. Sleyman Can called him back to say thatneither of the missing men had been to the gendarmerie station or taken intocustody.

After receiving that information he did not consider an on-site inspectionnecessary. The procedure was that the commanding officer of thegendarmerie had a duty to inform him whenever anyone was taken intocustody and of the reasons for the arrest. He regarded everything he was

told by the gendarmes as true. He gave the following account of the events:We considered that Serdar Tan and Ebubekir Deniz had not been taken into

custody. The investigation proceeded orally. I found the information provided by thecommanding officer to be satisfactory. On 26 January 2001 I contacted the rnak,Cizre and dil public prosecutors' offices by telephone and asked whether the missingmen had been detained within their sectors. They said they had not. Later that dayMr Tan arrived with the father of one of the missing men. We took a statement fromhim, they lodged their complaint and the investigation began that day. On 27 and 28January I took a statement from someone who said that he saw Serdar Tan andEbubekir Deniz enter the district gendarmerie command and gave instructions to thecommanding officer to send full lists of the names of the soldiers and officers who


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were on the premises on 25 January 2001. I also questioned five or six soldiers whowere on duty that day. I repeat that it would not have been possible to conceal anydetention from me and that there would have been no point in my going to the station.On 29 January 2001, in accordance with our internal organisation procedure, I handedthe investigation file over to my colleague Gndoan ztrk, who took evidence fromvarious gendarmes and members of the armed forces. On the same day a delegationfrom the Human Rights Association came to see me and asked me questions about theinvestigation. I did not say that they should look for Serdar Tan and Ebubekir Denizin rnak. I always spoke to Sleyman Can on the telephone and did not meet him in

person. We did not receive any information about what had happened to the missingmen. I saw the visitors' register and the custody record on 29 January 2001 andchecked the signatures.

131. With regard to the investigation procedure, the witness said that,when investigating a case, the public prosecutor was in all cases entitled to

enter the gendarmerie station, make enquiries on the premises and carry outjudicial checks, such as inspecting the cells or checking the lawfulness andconditions of detention.

132. He expressed no view on the allegation that a gendarme had calledSerdar Tan to ask him to come to the station. He said that he could notdivulge the name of that person as the investigation was confidential.

24. Gndoan ztrk

133. Gndoan ztrk was born in 1971 and was a public prosecutor inSilopi at the material time.

134. He did not know Serdar Tan or Ebubekir Deniz. He was in charge

of the investigation into the disappearance of the two men for a period offive months before being transferred on 12 July 2001.

He gave the following account:

There were three public prosecutors in Silopi. One of us was on duty each week. Iwas given the file on the case by Kubilay Tatan. He had taken some statements andrequested the registers from the station. I questioned the gendarmes who were presentat Silopi district gendarmerie command on 25 January 2001 and carried out a properinvestigation taking all possibilities into account. On a number of occasions I usedEyp Tan, who was a key witness in this case. I sent him to Diyarbakr so that anidentikit picture could be made of the people who had attempted to force Serdar Taninto a car. I asked for the people who had telephoned him to be identified and

photographs of all personnel at Silopi district gendarmerie command were shown toEyp Tan. The public prosecutors' offices in the region were informed that the twomen were missing. Copies of the visitors' registers to the station were sent to theInstitute of Forensic Medicine. I did not take a statement from Sleyman Can as I wasnot given the authority to do so, as when a commanding officer was accused of anoffence authorisation was needed from the Ministry of Justice. I questioned the othergendarmes as suspects.

Until 26 February 2001 those concerned had access to the documents in theinvestigation file and a copy of the material in the file was given to dris Tan.However, the information had been disseminated by the media, including the mediacontrolled by the illegal organisation. Therefore, further to an application by me with


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a view to bringing the investigation to a successful conclusion, the judge made anorder on 26 February 2001 imposing restrictions on access to the file. It is true that thecommanding officer of the Silopi gendarmerie had earlier sought an order making allthe statements from the gendarmerie personnel confidential.

135. In response to a question regarding the identity of the person whohad telephoned Serdar Tan on 25 January 2001, the witness replied:

No call was made by the commanding officer of the Silopi gendarmerie. The listcompiled by the telephone operators indicates the name of the person who rang SerdarTan. That name appears in the file. When we sent a copy of the investigation file tothe Ministry of Justice, the names had not been deleted. Since the person concernedwas not in Silopi, I had no jurisdiction to question him or her or to organise anidentification procedure. I informed the competent public prosecutor's office and itwas its responsibility to take the necessary action.

25. Hakan Baverdi

136. Hakan Baverdi was born in 1968 and was a public prosecutor inSilopi at the material time.

137. He did not know Serdar Tan or Ebubekir Deniz and was notpersonally responsible for the investigation. However, the other two publicprosecutors worked with him.

D. The documentary evidence

1. The petitions lodged with the Silopi public prosecutor's office bydris Tan on 26 January 2001 and by uayip Tan and MehmetAta Deniz on 29 January 2001

138. The applicants alleged that Serdar Tan and Ebubekir Deniz hadbeen threatened and intimidated by the commanding officer of the rnakgendarmerie regiment on account of their activities as members of HADEP.They stated that after being summoned by the commanding officer of theSilopi gendarmerie the missing men had gone to the station on 25 January2001. There had been no news of them since.

2. The documents relating to the investigation carried out by the Silopipublic prosecutor's office

139. On 26 January 2001 the public prosecutor Kubilay Tatan tookevidence from Eyp Tan and mer Sansur. The latter said that, followinga telephone call from the commanding officer, he had taken Serdar Tanand Ebubekir Deniz by car to the Silopi gendarmerie.

The telephone records showed that Serdar Tan had received a call onhis mobile phone at 1.44 p.m. on 25 January 2001.


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140. On 27 January 2001 statements were taken from Eyp and drisTan at the Silopi Security Directorate. Eyp Tan described the men who

had attempted to force him and Serdar Tan to get into their car. dris Tansaid that Eyp and Serdar Tan had been intimidated in the past on accountof their activities as members of HADEP and that he was worried abouttheir safety.

141. On 28 January 2001, further to an oral request from the Silopipublic prosecutor's office, the commanding officer of the rnakgendarmerie regiment sent two notes to the rnak and Silopi public

prosecutors' offices and to the rnak provincial governor indicating that:(a) Serdar Tan went to the Silopi district gendarmerie command of his

own accord on 18 January 2001, and during his meeting there he was notthreatened on account of his political activities or forced to resign from his

position as leader of the local branch of HADEP;(b) On 25 January 2001, Serdar Tan and Ebubekir Deniz went to the

station of their own free will and left the building at 2.30 p.m.;(c) During the visit, the commanding officer was out inspecting the

Ortaky gendarmerie post;(d) Serdar Tan was a gendarmerie informant;(e) On 25 January 2001 Serdar Tan handed over certain documents to a

non-commissioned officer and sought the latter's help with respect to therevocation of Ebubekir Deniz's operator's licence;

(f) The purpose of all the allegations that had been made was to tarnishthe image of the security forces, to misinform the public and to put pressureon the courts following the arrest of HADEP leaders in rnak on account oftheir links with the PKK. The persons concerned had issued officialstatements indicating that they had received death threats and thoseallegations had appeared in the 5 January 2001 edition of the Yeni Gndemnewspaper.

142. On 29 January 2001 the public prosecutor Kubilay Tatan tookstatements from two witnesses who said that they had seen Serdar Tan andEbubekir Deniz enter the gendarmerie station together, from the applicantsuayip Tan and Mehmet Ata Deniz, and from four gendarmes from Silopistation. The gendarme Veysel Ate said that Serdar Tan was wearing a suit

and entered the building with Ebubekir Deniz. The two men leftapproximately half an hour after arriving. The gendarme Ycel Erteki statedthat Ebubekir Deniz arrived at the station half an hour before Serdar Tan.

143. On 30 January 2001 the public prosecutor Gndoan ztrk tookstatements from two gendarmes who said that the missing men had not beentaken into custody in any of the gendarmerie posts and that they had noinformation about them.

144. As to the other statements taken by the Silopi public prosecutor'soffice, the Court notes that certain names and information have been deletedfrom the documents the Government produced on 5 March 2003. The


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Government stated that, owing to a confidentiality order made by thecompetent court, they were unable to disclose the name or details of the

person who had telephoned Serdar Tan on 25 January 2001, whom thepublic prosecutor Gndoan ztrk had identified, or to provide theunexpurgated investigation file containing the information that had beendeleted from the file sent originally.

145. On 19 November 2001 uayip Tan and his brother Nurettin werequestioned by the public prosecutor. Nurettin Tan stated that in January2001 they were arrested on the Silopi road while on their way to Cizre bythree people in civilian dress who asked uayip Tan to go to the rnakregimental headquarters. uayip Tan went to see the commanding officerLevent Ersz, who told him that Serdar Tan should resign from his

position in HADEP.

146. On 22 April 2003 the Silopi public prosecutor sent the case file tothe public prosecutor at the Diyarbakr National Security Court.

3. The other evidence before the Court

147. On 6 October 2003 the Government sent the Court a letter fromGeneral Levent Ersz, stating that the investigation by the Silopi public

prosecutor was still pending and that a simultaneous investigation by theCourt would interfere with due process and undermine the investigation. Hesaid that he had submitted his written statement to the domestic courtauthorities and refused to appear as a witness before the Court.

148. In a letter of 25 November 2003, the Government informed theCourt of the outcome of the proceedings concerning the complaint lodgedwith the rnak public prosecutor by Resul Sadak of intimidation againstHADEP party members. They said that the investigation had begun on 2March 2001. The public prosecutor had declared that he had no jurisdictionratione materiae and had returned the case file to the rnak AdministrativeCouncil. In an order dated 1 June 2001, the Administrative Council hadconcluded that there were no grounds for prosecuting the gendarmes againstwhom the accusations had been made.

149. In a letter to the Court dated 1 December 2003, the applicants'representative said that the person who made the telephone call to Serdar

Tan had been identified by the Silopi public prosecutor as the head of theintelligence and interrogation unit of the rnak gendarmerie regiment,Takn Akyn. He said that the file showed that Mr Akyn and twogendarmes from the same unit had attempted to force Serdar Tan to getinto the car on 25 January 2001.

150. On 20 May 2002 the rnak public prosecutor ruled that thecommanding officer of the rnak gendarmerie, Levent Ersz, had no caseto answer on the charge of making threats in order to secure compliancewith an ultimatum.


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151. On 20 May 2003 uayip Tan asked the President of the SiirtAssize Court to review that decision and again alleged that death threats had

been made. His application was dismissed on 19 January 2004 on theground that there was no evidence in the file to show that the accused hadthreatened uayip Tan.

4. The public prosecutor at the Diyarbakr National Security Court'sdecision that the defendants had no case to answer

152. On 9 February 2004 the public prosecutor ruled that seventy-threeof the defendants, including forty-eight gendarmes, had no case to answer.His findings were as follows:

The document ... dated 22 April 2003 drafted by the Silopi public prosecutor's

office on the kidnapping incident has been examined.

... the Silopi public prosecutor's office, on 22 April 2003, when referring theinvestigation file concerning the disappearance of the President and Secretary of thelocal branch of HADEP in Silopi, Serdar Tan and Ebubekir Deniz, ... asserted thatthe events in this case fell within the jurisdiction of the National Security Court forthe following reasons:

1. As regards defendants nos. 1 to 47 and defendant no. 71 at approximately1 p.m. on the date of the incident three individuals claiming to be police officers

pulled up in a vehicle in front of Serdar Tan and Eyp Tan outside Silopi PostOffice and asked them to get in. Serdar Tan and Eyp Tan refused, saying thatthey would go to the gendarmerie headquarters only if they received a call from the

authorities. Serdar Tan received a telephone call at about 2.30 p.m. and wassummoned to the Silopi district gendarmerie command. Serdar Tan and EbubekirDeniz went to the gendarmerie headquarters and have not been heard of since.

Approximately twenty-five days before the incident, the commanding officer of thernak gendarmerie regiment had summoned Serdar Tan's father, uayip Tan, andthreatened him telling him that his son should resign from his position as President ofthe local branch of HADEP as otherwise neither he nor his family would be allowedto live. The missing men were abducted by the security forces. Acts of servingsecurity forces in the region contravened Article 174 2 of the Turkish Criminal Codeand fell within the jurisdiction of the National Security Court.

2. As regards defendant no. 70 according to information received on police

telephone numbers 155 and 156 approximately one month previously, the President ofthe HADEP provincial office in rnak, Resul Sadak, had sent Serdar Tan andEbubekir Deniz in a state of unconsciousness from Silopi to northern Iraq where theywere to be handed over to the PKK in exchange for 5,000 [United States] dollars[USD]. Such conduct contravened Article 168 1 of the Turkish Criminal Code andfell within the jurisdiction of the National Security Court.

3. As regards defendants nos. 48 to 60, 62 to 69 and 72 calls were made fromtheir telephones after 25 January 2001 to number 0542 8078821, which is EbubekirDeniz's telephone number. Such conduct contravened Article 169 of the TurkishCriminal Code and fell within the jurisdiction of the National Security Court.


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4. As regards defendant no. 61, Zeki Gen the defendant has made a statement tothe press saying that he killed the two missing men.

Having regard to the material in the investigation file and information obtained fromthe additional investigation by this office:

1. As regards defendants nos. 1 to 47 and defendant no. 71, who are servingmembers of the security forces in the region and local informants.

Firstly, an order was made to sever the investigation file concerning the allegationsof death threats made by the commanding officer of the rnak gendarmerie regiment,the head of the security forces in the region, against uayip Tan, the father of themissing Serdar Tan, and to send it to the rnak public prosecutor's office forinvestigation. Following the investigation by the rnak public prosecutor's office ..., adecision was made on 20 May 2002 that there was no case to answer as the only

evidence was abstract allegations. Following an objection by uayip Tan'srepresentative, Tahir Eli, the President of the Siirt Assize Court decided on19 January 2004 ... to reject it, for want of sufficient evidence to institute proceedingsor try ... the commanding officer of the rnak gendarmerie, and to uphold thedecision that there was no case to answer.

Since that decision is final, the allegation that 'he [Serdar Tan] was threatened withdeath twenty-five days before the incident', which constitutes the basis for theallegations that the said persons were kidnapped and executed by the security forces,is still pending and has not been made out.

Further, as regards the allegation that Serdar Tan and Ebubekir Deniz weresummoned by the commanding officer of the Silopi district gendarmerie shortly

before they went missing, that it has been impossible to obtain any news about themsince and that they were kidnapped by the security forces:

Having regard to the information provided to the investigators by the commandingofficer of the Silopi gendarmerie and the examination by the local public prosecutor'soffice of the registers kept by the Silopi district gendarmerie command;

It has been established from the signatures in the visitors' register at the districtgendarmerie command that the missing persons arrived at the Silopi districtgendarmerie command at 2 p.m. on the day they disappeared; that the records statethat they left at 2.30 p.m.; that their signatures on their arrival and departure appearopposite their names; that these signatures were sent to the Institute of ForensicMedicine for comparison with samples of their signatures obtained by the local public

prosecutor's office from various public records; and that the department of theIstanbul Forensic Medical Institute specialising in handwriting analysis ... concludedin its report of 29 June 2001 ... that the signatures in the register opposite the names ofthe missing men ... were those of Serdar Tan and Ebubekir Deniz.

Further, according to the Silopi gendarmerie, Serdar Tan was a local informant. Heprovided information and documents about past or future incidents in the region. Onthe day of his disappearance he attended the gendarmerie headquarters for that reason.... the visitors' register shows that on 5 and 17 January 2001 his father, uayip Tan,and on 18 January 2001 Serdar Tan himself, went to the gendarmerie headquarters;it was also noted that there was a fact sheet in the name of Serdar Tan among the


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fact sheets giving details of the sources and means of obtaining information held bythe central gendarmerie command at the Ministry of the Interior where the names oflocal informants were listed.

In the light of these explanations, the investigation file does not contain sufficientinformation and evidence to establish that the missing persons have been kidnapped

by the security forces.

2. As regards defendant no. 70, Resul Sadak in view of the information receivedby the security forces at 3.15 p.m. on 4 March 2001 from a person who did notdisclose his or her identity and has not been identified ('I do not recall the dateexactly, I negotiated with Resul Sadak, a member of HADEP, to take two people tothe north of Iraq in exchange for USD 5,000. I smuggled them to the north of Iraq viathe Habur border checkpoint in a lorry. On the way, the road was blocked by armedindividuals who took the two men with them. They also took the USD 5,000. I asked

Resul Sadak for this money on my return, but he did not give it to me.'), it was allegedthat the defendant had sent the missing persons to the PKK in northern Iraq inexchange for money.

In view of:

(a) the denial of these accusations by the defendant;

(b) the failure to identify the informant;

(c) the informant's failure to ask the authorities to take action;

(d) the lack of concrete evidence to support the allegation;

the investigation file does not contain sufficient information and evidence toestablish the truth of that allegation.

3. As regards defendants nos. 48 to 60, 62 to 69 and 72 although thetelecommunications records established that calls were made after the disappearanceof the two men to telephone number 0542 8078821, which is registered in the name ofEbubekir Deniz, that telephone is not used by Ebubekir Deniz, but by his uncleMehmet Reat Tan, who has used it since 2000 and who received the calls that weremade to it. In view of that fact, the investigation file does not contain sufficientinformation or evidence to establish that the defendants established contact withEbubekir Deniz after the date of his disappearance.

4. As regards defendant no. 61, Zeki Gen it has been claimed that the defendanthad stated in the press that he killed the missing men.

However, in view of:

(a) the statements made by the defendant on 10 May 2002 to the public prosecutor,in which he said that after seeing a group of HADEP party members set the Turkishflag on fire and insult martyrs [people who had been killed by PKK militants] he hadsnatched back the flag and injured a person in the leg for insulting his brother, amartyr, that he had no connection with the missing persons and the article in the


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15 November 2001 edition of the Starnewspaper was exaggerated, that he rejectedthe accusation and did not know the missing persons;

(b) the fact that it is impossible to find concrete evidence to support the newspaperarticle;

the investigation file does not contain sufficient information and evidence as regardsthis allegation.

In the light of the above findings:

The defendant's implication ... in the disappearance of the two men has not beensufficiently established to enable criminal proceedings to be instituted underArticle 163 of the Code of Criminal procedure.

Decides, pursuant to Articles 164 and 165 of the Code of Criminal Procedure:

That, in the light of the lack of evidence, no criminal proceedings should be broughtagainst the defendants;

That in view of the confidentiality order issued by the Silopi District Court on11 December 2001 under the provisions of the Code of Criminal Procedure and therestriction imposed on the rights of the parties or their representatives to examine thecase file and to take copies of documents, owing to the fact that when theinvestigation was carried out by the local public prosecutor's office statements wereobtained from local informants in which their names and addresses were given, it isnecessary to remove from the file and hold at the public prosecutor's office at the

National Security Court pursuant to section 6 of the Prevention of Terrorism Act the

statements of the local informants, the information relating to their identity and a copyof the documents, without prejudice to the merits;

To return the case file to the Silopi public prosecutor's office, which has jurisdictionin the area in which the incident took place, in order to discover the real culprits;

To serve a copy of the decision on the complainants, their representatives and thedefendants;

To serve a copy on the Department of Criminal Affairs, on the Department ofInternational Law and External Relations at the Ministry of Justice, as the case is thesubject of an application to the European Court of Human Rights; and

To serve a copy of the decision on the commanding officer of the rnak provincialgendarmerie, as the accused include gendarmerie officers.

153. The applicants appealed against the decision that there was no caseto answer. Their appeal was dismissed by the Malatya National SecurityCourt on 3 May 2004. The relevant passages from its decision read asfollows:

Having considered the grounds of appeal and the investigation file:


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1. The decision that the defendants, who are public servants, have no case to answerconcerns Article 174 2 of the Criminal Code [which governs offences against

political freedom]. No such order has been made in the case concerning thedisappearance. The decision contains an order to pursue the investigation into thatincident.

2. A decision that there is no case to answer is not a final decision. The proceedingswill resume if new evidence comes to light before the end of the limitation period.Proceedings may be brought de novo against an accused who has been found to haveno case to answer or against other suspects (Article 167 2 of the Code of CriminalProcedure).

In the present case, the offence in respect of which the appeal has been made iswithin the jurisdiction of the National Security Court. No additional investigation has

been ordered under Article 166 2 of the Code of Criminal Procedure since no defect

liable to affect the merits has been found. However, it would appear advisable to takethe following steps when gathering evidence in the course of the investigation:

(a) To obtain a new statement from Takn Akyn regarding the point referred to inthe document issued on 11 June 2001 by the Silopi public prosecutor's office; toorganise a confrontation between the witness Eyp Tan and Takn Akyn, inaccordance with the procedure, in order to clear up the uncertainty over identification;to establish why Takn Akyn called Serdar Tan at 1.44 p.m. on 25 January 2001;

(b) To trace the record drawn up on 12 January 2001 concerning the lorry withregistration number 73 DK 558 and to obtain a statement from Sami Tan, whosename is mentioned in the record, in order to determine why Ebubekir Deniz went tothe gendarmerie headquarters;

(c) In order to determine whether Eyp Tan and Serdar Tan were threatened onthe day of the incident [attempt made to force them to get into a vehicle], to identifythe registration number of the vehicle concerned, and establish why the eyewitnessEyp Tan failed in broad daylight to note a single letter from the number platewhich was very close to him when he had given a detailed description of the peoplewho had tried to force them to get into the vehicle;

(d) To send the photograph of Serdar Tan in the case file and the photographallegedly portraying Serdar Tan with a militant from the organisation to the relevantdepartment at the Istanbul Institute of Forensic Medicine to see whether the two

photographs are of the same person.

Having regard to the aforementioned considerations:

Decides, following its examination of the case file, dismissing the appeal and sittingas a court of last instance:

1. To dismiss the complainants' objections to the public prosecutor at the NationalSecurity Court's decision of 9 February 2004 that there was no case to answerconcerning the offence under Article 174 of the Criminal Code of using threats orviolence to prevent the exercise of political rights, as the decision complied with therules of procedure and the law;


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2. To pursue the investigation, to send the case file to the Silopi public prosecutor'soffice to remedy the defects noted in the investigation and listed above ...

To remit the case file to the public prosecutor's office at the Diyarbakr NationalSecurity Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

154. The Criminal Code makes it an offence to:(a) arbitrarily deprive a person of his or her liberty (Article 179 lays

down the general rule, Article 181 the rule applicable to public servants);(b) make threats (Article 191);(c) subject a person to torture or ill-treatment (Articles 243 and 245);

(d) commit involuntary homicide (Articles 452 and 459), voluntaryhomicide (Article 448) or premeditated murder (Article 450).

155. For all these offences, complaints may be lodged, pursuant toArticles 151 and 153 of the Code of Criminal Procedure, with the public

prosecutor or the local administrative authorities. The public prosecutor andthe police have a duty to investigate crimes reported to them, with theformer deciding whether a prosecution should be initiated, pursuant toArticle 148 of the Code of Criminal Procedure. A complainant may appealagainst a decision by the public prosecutor not to institute criminal

proceedings.The public prosecutor had no jurisdiction to investigate alleged acts of

terrorism, for which a separate system of national security prosecutors andcourts operated throughout Turkey (at the material time).

156. Article 143 of the Code of Criminal Procedure provides:

Counsel for the defence may examine all the material in the investigation file andthe procedural file and take copies of any documents free of charge.

If it would be prejudicial to the preliminary investigation for this right to beexercised, a district court judge may, on an application by the public prosecutor, makean order restricting its exercise ...

157. Article 174 of the Criminal Code provides:

Anyone who by threats or violence ... totally or partly prevents another fromexercising his or her political rights shall be guilty of an offence ...

If the offender is a public servant who has abused his or her authority to commit theoffence, the prison sentence shall be ... and the offender shall be disqualified from

public service for between one and three years.

THE LAW


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I. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THEESTABLISHMENT OF THE FACTS

158. The Court is called upon to decide whether on the facts theauthorities of the respondent State failed to comply with their duty to

protect the applicants' relatives' right to life and with their procedural duty,which likewise arises under Article 2 of the Convention, to carry out anadequate and effective investigation into the incident. The applicants alsorelied on Articles 3, 5 and 13 of the Convention.

159. In order to establish the facts, the Court has referred to the parties'observations, the documentary evidence and the depositions taken from thewitnesses in Ankara.

160. The Court considers the following principles to be relevant when

assessing the evidence for the purposes of establishing the facts.(a) In assessing the written and oral evidence, the Court has generally

adopted up to now the standard of proof beyond reasonable doubt. Suchproof may follow from the coexistence of sufficiently strong, clear andconcordant inferences or of similar unrebutted presumptions of fact; inaddition, the conduct of the parties when evidence is being obtained may betaken into account (see, mutatis mutandis, Ireland v. the United Kingdom,

judgment of 18 January 1978, Series A no. 25, pp. 64-65, 161, andSalman v. Turkey [GC], no. 21986/93, 100, ECHR 2000-VII).

(b) As regards the depositions taken by the delegates, the Court has paidparticular attention to the issue of the meaning and weight to be attached tothe witnesses' testimony.

(c) In cases in which there are conflicting accounts, the Court isinevitably confronted when establishing the facts with the same difficultiesas those faced by any first-instance court. The Court has no power tocompel the attendance of witnesses. In the present case, two witnesses failedto attend the hearing before the delegates: Levent Ersz, the commandingofficer of the rnak gendarmerie regiment at the material time; and the

person who telephoned Serdar Tan on 25 January 2001, whose identityhas not been revealed by the Government. In addition, the Court has not

been able to obtain a complete set of unexpurgated documents from the

investigation file. Its task of establishing the facts has been made moredifficult as a result of these gaps in the material before it.When, as in the instant case, the respondent Government have exclusive

access to information and the power to secure the attendance of witnessesable to corroborate or refute the applicants' allegations, any lack ofcooperation by the Government without a satisfactory explanation may giverise to the drawing of inferences as to the well-foundedness of theapplicants' allegations (see, mutatis mutandis,Akkum and Others v. Turkey,no. 21894/93, 209, ECHR 2005-II).


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(d) The Court has previously held that where the events in issue liewholly, or in large part, within the exclusive knowledge of the authorities,

as in the case of persons under their control in custody, strong presumptionsof fact will arise in respect of injuries and death occurring during thatdetention. Indeed, the burden of proof may be regarded as resting on theauthorities to provide a satisfactory and convincing explanation (see Tomasiv. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, 108-11; Ribitsch v. Austria, judgment of 4 December 1995, Series Ano. 336, pp. 25-26, 34; Selmouni v. France [GC], no. 25803/94, 87,ECHR 1999-V; and Salman, cited above, 100).

Further, since the authorities are accountable for persons in their custody,Article 5 requires them to take effective measures to safeguard against therisk of disappearance and to conduct a prompt and effective investigation

into an arguable claim that a person has been taken into custody and has notbeen seen since (see Kurt v. Turkey, judgment of 25 May 1998, Reports ofJudgments and Decisions 1998-III, p. 1185, 124, and akc v. Turkey[GC], no. 23657/94, 104, ECHR 1999-IV).

These principles also apply to cases in which, although it has not beenproved that a person has been taken into custody by the authorities, it ispossible to establish that he or she was officially summoned by the militaryor the police, entered a place under their control and has not been seensince. In such circumstances, the onus is on the Government to provide a

plausible explanation as to what happened on the premises and to show thatthe person concerned was not detained by the authorities, but left the

premises without subsequently being deprived of his or her liberty. In theabsence of such an explanation, the Court's examination of the case mayextend beyond Article 5 of the Convention to encompass, in certaincircumstances, Article 2.

161. In a case such as the present one in which there are contradictoryand conflicting factual accounts of the events, the Court finds it particularlyregrettable that there should have been no thorough judicial examination orother independent investigation into the relevant facts by the domesticcourts. In that connection, it reiterates the importance of the firstundertaking given by the Contracting States, in accordance with Article 1 of

the Convention, which is to secure the rights guaranteed by the Convention,and in particular the right to an effective remedy laid down by Article 13 ofthe Convention.

A. Article 38 1 (a) of the Convention

162. The relevant part of Article 38 of the Convention provides:

1. If the Court declares the application admissible, it shall:


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(a) pursue the examination of the case, together with the representatives of theparties, and if need be, undertake an investigation, for the effective conduct of whichthe States concerned shall furnish all necessary facilities;

...

163. The Court notes that Convention proceedings do not in all caseslend themselves to a rigorous application of the principle affirmantiincumbit probatio (he who alleges something must prove that allegation). Ithas previously held that it is of the utmost importance for the effectiveoperation of the system of individual petition instituted under Article 34 thatStates should furnish all necessary facilities to make possible a proper andeffective examination of applications (see, for example, Tanrkulu v. Turkey[GC], no. 23763/94, 70, ECHR 1999-IV). It is inherent in proceedings

relating to cases of this

CASE OF TANIS AND OTHERS v. TURKEY

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